DRAFT EMIGRATION BILL, 2019

 
 
DRAFT EMIGRATION BILL, 2019




   A BILL TO PROVIDE FOR COMPREHENSIVE EMIGRATION MANAGEMENT, TO

INSTITUTE REGULATORY MECHANISMS GOVERNING OVERSEAS EMPLOYMENT OF

   INDIAN NATIONALS, TO ESTABLISH A FRAMEWORK FOR PROTECTION AND

  PROMOTION OF WELFARE OF EMIGRANTS AND FOR MATTERS CONNECTED

                  THEREWITH OR INCIDENTAL THERETO




BE IT ENACTED BY PARLIAMENT IN THE SEVENTIETH YEAR OF THE REPUBLIC OF

                          INDIA AS FOLLOWS:
CHAPTER I

                           PRELIMINARY




1. (1) This Act may be called the Emigration Act, 2018.

   (2) It extends to the whole of India and applies also to citizens Short title, extent,

of India outside India.                                               application and

   (3) It shall come into force on such date as the Central commencement

Government may, by notification appoint, and different dates

may be appointed for different provisions of this Act and any

reference in any such provision to the commencement of this

Act shall be construed as reference to the commencement of

that provision.




2. (1) In this Act, unless the context otherwise requires: -

                                                                      Definitions

   (a) “appropriate government” shall mean government of the

       State or the administration of the Union Territory as the

       case may be;



   (b) “certificate” means a certificate of registration issued

       under section 18 of the Act;




                                               1
(c) “chairperson” means the chairperson of the Emigration

   Management Authority appointed under section 3(2) and

   section 9(2) of the Act;



(d) “competent authority” means the Emigration Management

   Authority constituted under section 3 of the Act, Bureau of

   Emigration Policy and Planning established under section

   4 of the Act , Bureau of Emigration Administration

   established under section 5 of the Act, State Nodal

   Authorities established under section 9 of the Act and any

   other person or entity appointed or authorized by the

   Central Government to exercise the powers of a

   competent authority as is constituted under the provisions

   of this Act;




(e) “emigrate and emigration” means the departure out of

   India by any person with a view to taking up any

   employment (whether or not under an agreement to take

   up such employment and whether with or without the

   assistance of a recruitment agency or employer), or

   otherwise,     including   herein   students   in   pursuit   of

   academic interest in any country outside India:




                                            2
Academic interest for the purposes of Act would mean

    affiliation from academic/professional institutions in the

    form of a Bachelor, Masters or a Doctorate degree and

    shall include herein research projects, assignments,

    certificate courses or any other nature of accreditation.



(f) “emigrant” means any citizen of India, not below eighteen

   years of age, who intends to emigrate or has emigrated

   for, or with regard to employment as has been defined in

   the Act but does not include ;

      (i) a dependent of an emigrant, whether such

      dependent accompanies such emigrant, or departs

      subsequently for the purpose of joining that emigrant

      in the country to which that emigrant has lawfully

      emigrated,

      (ii) any person who resides outside India at any time

      after attaining the age of eighteen years for not less

      than three years or the spouse or child of such person;



(g) “emigrant conveyance” means any conveyance used for

   conveyance of emigrants and includes a vessel, vehicle,

   country-craft and aircraft:

    Provided    that   the   Central   Government     may,      by

    notification, declare that any conveyance conveying



                                          3
emigrants to such place as may be specified in the

    notification shall not be deemed to be an emigrant

    conveyance;



(h) “employer” means a person providing, or offering to

   provide, an employment in a country or place outside

   India;



(i) “employment”    means    any    service,    occupation   or

   engagement      (not   being     service,    occupation   or

   engagement under the Central Government or a State

   Government),     or any other activity      defined as work

   within the meaning of this Act outside India for wages,

   salary, remuneration, stipend or for any reward (monetary

   or otherwise), and includes in all its grammatical

   variations and cognate expressions every receipt of such

   a nature;




(j) “exploitation” shall include all forms of physical / sexual

   exploitation, forced labor or services, slavery or practices

   similar to slavery, servitude, removal of organs and any

   sub-human treatment for the purposes of the Act;




                                          4
(k) “human smuggling” means assisting, facilitating, or

   making arrangements for a person to enter illegally into

   another country of which such person is not a citizen or

   permanent resident, with the full knowledge that such

   entry is illegal, in order to gain financial or any other

   material benefit;




(l) “notification” means a notification published in the official

   gazette;



(m)“recruitment agency” means a person or body of persons

   or an entity engaged in India in the business of

   recruitment for an employer and representing such

   employer with respect to any matter in relation to such

   recruitment including dealings with persons so recruited

   or desiring to be so recruited and registered under section

   17 of the Act;




(n) “recruitment” includes the issuing of any advertisement or

   otherwise, for the purpose of recruitment, the offering by




                                           5
advertising or otherwise to secure or assist in securing

   any employment in any country or place outside India and

   entering into any correspondence, negotiation, agreement

   or arrangement with any individual for or in relation to the

   employment of such individual in any country or place

   outside India;



(o) “sub-agent” in relation to a recruitment agency, means

   any person/ body of persons or an entity other than an

   employee engaged for the purpose of assisting the

   recruitment agency in the recruitment of emigrants;




(p) “trafficking of person” shall have the meaning assigned to

   it in sub- section (1) of section 370 of the Indian Penal

   Code, 1860;



(q) “work” includes all categories of work – skilled ; semi

   skilled or unskilled , that may be of a temporal or a

   permanent nature, undertaken whether partly or on a full

   time duration;



    Provided that the Central Government may, if satisfied




                                          6
that it is necessary so to do having regard to the

       conditions   of    service   applicable       with   respect   to

       employment in any of the aforementioned categories of

       work or any sub-category thereof, whether generally or in

       relation to any particular country or place and other

       relevant circumstances, declare by notification that such

       category of work or sub-category of work with respect to

       a particular country or countries or place shall not be

       deemed to be work within the meaning of this definition.



       Any reference in this Act to any law which is not in force

       in any area shall, in relation to that area, be construed as

       a reference to the corresponding law, if any, in force in

       that area.




                            CHAPTER II

                         Defined Authorities




3(1) The Central Government shall, by notification, constitute an

Emigration Management Authority to provide directions for Emigration Management

comprehensive emigration management and to ensure the Authority (EMA)

overall welfare and protection of emigrants for the purposes of




                                                 7
this Act.



(2) The composition of the Emigration Management Authority

shall be as follows, namely: -

(I) Secretary or equivalent, Ministry of External Affairs-

Chairperson ;

(ii) Representative, no less than the rank of a Joint Secretary or

equivalent, Ministry of Home Affairs- Member;

(iii) Representative, no less than the rank of a Joint Secretary or

equivalent, Ministry of Human Resource               Development-

Member;

(iv) Chief of Emigration Policy and Planning, –            Ex-Officio

Member;

(v) Chief Emigration Officer – Ex- Officio Member;

(vi)One Representative from major labour sending States to be

nominated on a rotational basis for a period of two years;

(vii) One Representative from amongst persons of integrity and

outstanding ability, having special knowledge of, and experience

in international migration, recruitment and allied matters to be

nominated for a period of two years.



(3)   The    Chairperson    shall   have    powers    of     general
                                                                        Administrative powers of
superintendence and direction in respect of all administrative
                                                                        the Chairperson




                                              8
matters and may, in consultation with the Central Government,

distribute work amongst the members, in accordance with the

provisions of this Act.



(4) The Emigration Management Authority shall meet at such Meeting of the

time and place, and shall observe such rules of procedure with Emigration Management

regard to transaction of business at its meetings as may be Authority

specified by regulations.



(5) The Authority may constitute such committees as may be Committees of the

necessary for the efficient discharge of its duties and Emigration Management

performance of its functions.                                      Authority




(6) The Authority shall have the power to co-opt, such number of

persons for its meetings (not being the members of the

Authority), as it may deem fit.




                                                                   Bureau of Emigration
4(1) The Central Government may, by notification, establish a
                                                                   Policy and Planning
Bureau of Emigration Policy and Planning (BEPP) to formulate
                                                                   (BEPP)
effective policies through periodic assessment, undertake

consultation with relevant stakeholders and carry out analysis

with regard to emigration and allied matters for the purposes of




                                            9
this Act.



(2)The BEPP shall consist of a Chief of Emigration Policy and

Planning, who shall be an officer no less than the rank of a Joint

Secretary or equivalent, and other officers of such appropriate

ranks as may be necessary for the discharge of functions for the

purposes of this Act.




                                                                       Bureau of Emigration
5(1) The Central Government may, by notification, establish a
                                                                       Administration (BEA)
Bureau of Emigration Administration (BEA) for implementation of

the provisions of this Act and to ensure the welfare and

protection of the emigrants for the purposes of this Act.



(2) The BEA shall have as many offices in different parts of the

country as may be required.



(3) The BEA shall consist of the Chief Emigration Officer, no

less than an officer of the rank of a Joint Secretary or equivalent,

and other officers of such appropriate ranks as may be

necessary for exercising the powers and discharging its

functions under this Act.




                                              10
(4) The other offices shall consist of Emigration Officers, and

other officers of such appropriate ranks as may be necessary for

the discharge of the functions for the purposes of this Act.



(5) The Central Government may, by notification, define the

area to which the authority of an Emigration Officer so appointed

shall extend and, where two or more Emigration Officers are

appointed for the same area, also provide, by such order, for the

distribution and allocation of the work to be performed under this

Act



(6) The Emigration Officers shall perform the functions assigned

to them under this Act under the general superintendence and

control of the Chief Emigration Officer.



(7) The Chief Emigration Officer may, in addition to the special

function assigned to him by or under this Act, perform all or any

of the functions assigned to any Emigration Officer.



6(1) Where the Central Government considers that, with a view

to preventing or checking the contravention of the provisions of

this Act, it is necessary so to do, it may, by notification, set up




                                             11
such number of emigration check-posts at such places as may

be specified.



(2) The Central Government may, by general or special order

made in this behalf, appoint an officer of the Central Emigration Check Posts

Government or of a State Government to be an officer in charge

of an emigration check- post set up under sub-section (1).



(3) An officer in charge of an emigration check-post shall be

subject to the general control and supervision of the Chief

Emigration Officer or any other authority as specified within the

local limits of whose jurisdiction that emigration check-post is

situated.



7. The Central Government may, if satisfied that it is necessary
                                                                    Power to authorize
so to do in the interest of emigrants or intending emigrants,
                                                                    persons to exercise
authorise any person to perform all or any of the functions
                                                                    functions of competent
assigned to them by the competent authority.
                                                                    authority




8. The officers of such competent authorities, as employed with

the Central and State Governments as is mentioned in the Act,
                                                                    Emigration Officers to
the officers in charge of emigration check-posts, emigration
                                                                    be public servants




                                            12
officers and emigration employees appointed under this Act shall

be public servants within the meaning of section 21 of the Indian

Penal Code (45 of 1860).



9(1) The appropriate Government shall by notification establish

a Nodal Authority in the States and Union Territories as may be Nodal Authorities in

required to facilitate the implementation of this Act and work in states and union

coordination with other competent authorities as has been territories

specified for the purposes of the Act



(2) The Nodal Authority shall consist of a chairperson from the

home department, no less than the rank of a Principal Secretary

or equivalent in State or Union Territory, as the case may be,

and representatives drawn from departments of Labour, NRI and

Skill, and as many other officers as may deem fit for the

purposes of the Act.




10. Subject to the other provisions of this Act, the Emigration

Management Authority, in addition to the special duties assigned General functions of




                                            13
to them under this Act shall:                                        EMA

(i) Coordinate and supervise the management of emigration in

India;

(ii) Advise the Central Government on emigration policy matters;

(iii) Direct authorities and functionaries, as defined within the

purposes of this Act, as and when required;

(iv) Recommend appropriate measures for enforcing provisions

of this Act and the rules and regulations made hereunder;

(v) Obtain such reports, as it may deem necessary, from the

Diplomatic Missions of India and other authorities for effective

discharge of its functions;

(vi) Meet periodically, at least once in six months, to assess the

overall functioning of the Act and to direct upon appropriate

policies, thereby ensuring a comprehensive and coordinated

approach towards emigration.



11. Subject to the other provisions of this Act, the Bureau of

Emigration Policy and Planning, in coordination with relevant
                                                                     General functions of
stakeholders as required and in addition to the special duties
                                                                     BEPP
assigned to it under this Act shall:

(i) Prepare comprehensive policies on matters concerning

welfare of emigrants      including insurance, skill up gradation

training, pre departure orientation programme etc. to ensure




                                              14
safe, orderly and regular migration from India;

(ii) Negotiate labour and manpower cooperation agreements and

memorandum of understandings, social security agreements,

issues of migrant and mobility partnership and related framework

with destination countries;

(iii) Undertake study and research towards mapping of global

skills as required, labour market analysis with focus on new

labour markets and related job rules;

(iv) Map labour clusters with the country and analyse skill gap

concerns;

(v) Devise parameters and frame guidelines for rating of entities

involved in recruitment etc;

(vi) Suggest measures for enhancing welfare and protection of

migrants;

(vii) Facilitate gender sensitive programmes and activities to

assist particular needs of women migrant workers;

(viii) Make efforts towards online access of information on

recruitment and emigration related matters with the destination

countries;

(ix) Analyse the source and pattern of remittances;

(x) Maintain information on legal systems, emigration policies,

labour and human rights instruments , laws of destination

countries along with the profiles of overseas Indians in such




                                             15
countries ;




12. Subject to the other provisions of this Act, the Bureau of

Emigration Administration , in coordination with relevant

stakeholders as required, in addition to the special duties General Functions of

assigned to it under this Act shall:                               BEA

(i) Maintain a digitalized record of the following:

a.     Indian national going for overseas employment and

returnees.

b.     Students emigrating in pursuit of academic interest.

c.     Blacklisted foreign employment agencies, fraudulent

recruitment agencies, etc;

(ii) Establish a shared database among concerned stakeholders

in the government to maintain a comprehensive approach

towards emigration;

(iii) Implement appropriate measures and programmes for

welfare of emigration including insurance, skill upgradation and

training, pre departure orientation, counselling with a view to

assist emigrants in all stages of migration cycle;

(iv) To register, cancel/ suspend the certificate of recruitment

agencies/ enrolment agencies and accredit the employers;

(v) Specify by regulations the standards for employers,




                                               16
recruitment agencies, sub-agents and enrolment agencies;

(vi) Monitor performance of employers, recruitment agencies

and enrolment agencies;

(vii) Give ratings for employers, recruitment agencies and

enrolment agencies under this Act and formulate incentives and

disincentives to them on that basis;

(viii) Call for any information, return, or documents from the

recruitment agencies;

(ix) Periodically inspect, any register or records maintained by

the recruitment agency;

(x) Encourage self-regulation amongst the recruitment agencies

and enrolment agencies;

(xi) Prevent illegal emigration, irregularity in recruitment

procedures and misuse of visa;

(xii) Blacklist in such manner as may be specified by

regulations,   an   employer       for   a   breach   of   contract   or

contravention of any of the provisions of this Act, rules and

regulations made thereunder;

(xiii) Initiate necessary action to prosecute against those

involved in illegal recruitment;

(xiv) Establish help desks and migrant resource centres in India

and abroad as and where necessary;

(xv) Maintain data of offices and contact details of Indian




                                                 17
Missions in each country and details of posts (consulates)

abroad;

(xvi) Undertake awareness programmes so as to ensure safe,

orderly and legal migration;

(xvii) Monitor situations, circumstances and activities affecting

overseas Indians;

(xviii) Inquire into the treatment received by emigrants during

their voyage or journey to, and during the period of their

residence in the country to which they emigrated and also during

the return voyage or journey to India and assist migrant workers

at all stages of the migration cycle;

(xix) Protect and aid upon advice or otherwise to all intending

emigrants;

(xx) Aid and advice, emigrants who have returned to India;

(xxi) Work in coordination with the other authorities as has been

established for the purposes of this Act to ensure safe migration.




13. Subject to the other provisions of this Act, the Nodal

Authority working in coordination with the Chief Emigration Function of Nodal

Officer, Emigration Officers and other competent authorities as Authority

mentioned for the purposes of the Act and in addition to the




                                            18
special duties assigned to it under this Act shall:



(i) Initiate action to prosecute Illegal recruitment agents;

(ii) Initiate action to prosecute travel agencies, tour operators,

emigration consultants or any other entity involved in human

trafficking;

(iii) Undertake pre departure orientation programs, skill up

gradation programmes for prospective emigrants;

(iv) Work in coordination with relevant State departments to

devise and implement effective policies and programmes

towards relief, rehabilitation and harnessing skills of returnee

emigrants and mapping of labour clusters in States/ Union

Territories;

(v) Maintain a database of returnee migrants and work towards

their resettlement in the States/ Union Territories;

(vi) Assist in creating awareness to ensure safe, orderly and

regular migration;




                              CHAPTER III

               Emigration of Indian Nationals and Students




                                               19
14. A registration, electronically or otherwise, as in the manner

prescribed by the Central Government, shall be mandatory for Registration of Migrants

migrants for overseas employment and subject to such

conditions as may be specified by regulations:

Provided that the Central Government, if satisfied that it is

necessary to do so, may exempt certain category of emigrants

from mandatory registration for the purposes of this Act



15(1) An intimation, electronically or otherwise, as in the manner
                                                                     Registration of Students
specified by the Government, shall be mandatory for all

students. Every student before his departure from India shall

intimate the competent authority in such manner and subject to

such conditions as may be specified by regulations.



(2) For the purposes of the Act, migration of students means

departure of students, in pursuit of academic interest in any

country outside India and students means a citizen of India

enrolled or seeking enrolment for study in an educational

institution in a country or place outside India either directly or

through an enrolment agency.




                                            20
Chapter IV

                        Recruitment Agencies




16. Save as otherwise provided in this Act, no recruitment

agency shall after the commencement of this Act commence or              Registration of

carry on the business of recruitment except in accordance with a      Recruitment Agencies

certificate issued in that behalf by the competent authority.

Provided that a person, who had been issued a valid certificate

immediately before the commencement of this Act for carrying

on the business of a recruitment agent, may continue to do so till

the date of its expiry, or for a period of twelve months, whichever

is earlier, from such commencement; and if he has made an

application for registration within a period of six months from the

date of commencement of this Act, till disposal of such

application by the competent authority



17(1) An application for registration shall be made to the
                                                                         Procedure for
competent authority in such form and shall contain such
                                                                         registration of
particulars   as   to    the    applicants   financial   soundness,
                                                                      Recruitment Agencies
trustworthiness, premises at which he intends to carry on his




                                               21
business, facilities at his disposal for recruitment or placement

or otherwise, his antecedents (including information as to

whether any certificate has been issued to him under this

chapter earlier and if so, whether such certificate had been

canceled) and previous experience, if any, of recruitment and

other relevant matters as may be prescribed and an undertaking

in the form prescribed to the effect that in the event of any

information furnished in or along with the application for

registration being found to be false or incorrect in any respect,

the certificate shall be liable to be canceled at any time in

accordance with the procedure prescribed.



Provided that no application shall be entertained under this sub

section from a person disqualified under Section 17(1) till the

expiry of the period of such disqualification ends.



(2) The competent authority shall issue the certificate of

registration in such form and manner, within such period, not

exceeding six months, and subject to such terms and conditions,

as may be specified by regulations.



(3) On receipt of the application the competent authority in the

Central Government shall,

(i) If the application is not in the specified form or does not



                                             22
contain any of the specified particulars, return the application to

the applicant;

(ii) On being satisfied that the application fulfill the requirements

specified there under, inform the applicant that he is eligible for

registration and require him to furnish the security specified, for

issue of certificate. If the applicant furnishes the security as

specified within a period of one month from the date on which

the Central Government requires him to furnish such security,

the Central Government shall register the recruitment agency

and issue a certificate in accordance with the provisions of the

Act. If the applicant fails to furnish the security specified within a

period of one month, his application shall be deemed to have

been rejected by the Central Government on the date of expiry

of the said period;

(iii) On being satisfied that the application does not fulfill the

requirements specified there under, reject such application by an

order in writing, after giving an opportunity of being heard to the

applicant.



(4) For the purposes of securing due performance of duties of

the recruitment agency, compliance with the terms and

conditions of the certificate to be issued under sub section (2),

compliance with the provisions of this Act and the rules and

regulations made there under, for meeting expenses which may




                                               23
have to be incurred in the event of repatriation to India of any of

the emigrant who may be recruited by the applicant and to pay

him the amount which he has been deprived of by the employer

in breach of the contract, the Authority shall require the

recruitment agency to deposit such amount of security, not less

than fifty lakh rupees, in such manner as may be specified by

regulations.



(5) If the applicant furnishes the security specified in sub section

(4) within a period of one month from the date on which the

authority requires him to furnish such security, the Authority shall

register the recruitment agency and issue a certificate in

accordance with the provision of sub section (2)



(6) If the applicant fails to furnish the security specified in sub

section (4) within a period of one month, his application shall be

deemed to have been rejected by the Authority on the date of

expiry of the said period.




18. The authority shall issue the certificate of registration in       Certificate of

such form and manner, within such period, not exceeding six            registration

months, and subject to such terms and conditions, as may be




                                              24
specified by regulations.




19. The duties of the recruitment agencies shall include and not

be limited to following:                                             Duties, Functions and

(i) To recruit on behalf of employer and provide details of          Rating of Recruitment

employment, including conditions of contracts of employment, to            Agency

the intending emigrants before recruitment;

(ii) Ensure that the employer carries out his contractual

obligations under the contract of employment during the period

of contract without any alterations;

(iii) Procure employment and travel documents, insurance

policy, as may be necessary, on behalf of emigrants and ensure

that the emigrant is not deprived of the custody of these

documents by the employer at any point of time on any ground

whatsoever;

(iv) Ensure proper reception of emigrant in the country of

employment;

(v) Ensure timely renewal of documents which authorize the

stay of emigrant in the country of employment;

(vi) Facilitate settlement of disputes between the employer and

emigrants, if any;

(vii) Issue receipts of charges collected by the emigrants;

(viii) Maintain reports, periodically on the status of employment,




                                              25
placement vacancies, departures and such other matters or

information in a manner as may be specified by the Central

Government;

(ix) Ensure that sub-agents engaged by it duly comply with the

standards specified by regulations by the competent authority

for sub-agents;

(x) Furnish particulars of sub-agents engaged by it to the

Authority in such manner and at such time as may be prescribed

by regulations;

(xi) Maintain specified performance standards and minimum

ratings to be assessed by Central Government for rating;

(xii) Ensure a pre-departure orientation of the emigrants have

been conducted and that they are sufficiently equipped with a

skill up gradation programme, wherever required for such

category of workers as may be specified by the Central

Government;

(xiii) Provide the contact details of concerned Indian Mission in

the country of employment (including its office address,

telephone, email and such other information as may be

necessary) to the emigrant before his departure.




20(1) The competent authority may cancel any certificate on any Cancellation/suspension




                                            26
one or more of the following grounds, namely;                            of a certificate.

(i) That having regard to the manner in which the holder of the

certificate has carried on his business or any deterioration in his

financial position, the facilities at his disposal for recruitment, or

the holder of the certificate is not a fit person to continue to hold

the certificate;

(ii) That the holder of the certificate has recruited/ placed

emigrants for purposes prejudicial to the interest of India or for

purposes contrary to public policy;

(iii) That the holder of the certificate or the recruitment agency

has, subsequent to the issue of the certificate, been convicted

by a court in India for any offence under this Act, or any other

law relating to passport, foreign exchanges, narcotics, drugs or

smuggling and sentenced in respect thereof, to imprisonment for

not less than six months;

(iv) That the certificate has been issued or renewed on

misrepresentation or suppression of any material fact;

(v) That the holder of the certificate has violated any of the

terms and conditions of the certificate;

(vi) That in the opinion of the Central Government it is

necessary in the interests of friendly relations of India with any

foreign country or in the interests of the general public to cancel

the certificate;

(vii) The recruitment agency has recruited an emigrant in



                                               27
contravention of any of the provisions of this Act or the rules and

regulations made there under or any other law for the time being

in force;

(viii) Any person recruited by a recruitment agency has been

denied entry or employment in the country of destination owing

to an act of commission or omission on the part of such

recruitment agency;

(ix) The recruitment agency has collected charges from an

emigrant in excess of the limits whenever specified by the

regulations;

(x) The recruitment agency has failed to maintain specified

minimum ratings;

(xi) The recruitment agency has committed breach of any of the

terms and conditions of the certificate of registration;



(2) Where the competent authority, for reasons to be recorded in

writing, is dissatisfied that pending the consideration of the

question of canceling any certificate on any of the grounds

mentioned in sub section (1) it is necessary so to do, the

registering competent authority, may, by order in writing,

suspend the operation of the certificate for such period not

exceeding thirty days as may be specified in the order and

require the holder of the certificate to show cause, within fifteen

days from the date of receipt of such order, as to why the




                                              28
suspension of the certificate should not be extended till the

determination of the question as to whether the registration

should be canceled;



(3) While passing an order of cancellation of certificate under

this sub section (1), the Authority shall follow such procedure as

may be prescribed:

Provided that no such order shall be made unless the person

concerned has been given a reasonable opportunity of being

heard in respect of the grounds for such cancellation.



(4) Where, after taking into consideration the facts and

circumstances of the case, the Authority is of the opinion that in

respect of the grounds specified in clauses iv, v, ix, x, xi of sub

section (1) , it may not be proper to cancel the certificate, it may,

instead of canceling, impose such fine, not exceeding ten lakh

rupees, or as may deem proper.



(5) Where the certificate of a recruitment agency has been

canceled    under this section, it shall not be eligible to make

another application for registration until the expiry of a period of

five years from the date of such cancellation.




                                              29
(6) A court convicting a holder of a certificate for an offense

under this Act may also cancel the certificate;



(7) Before passing an order canceling or suspending a

certificate the competent authority or the court, as the case may

be,   shall   consider   the    question   as   to   provisions   and

arrangements which should be made for safeguarding the

interests of emigrant and other persons with whom the holder of

the certificate had any transactions in the course of his business

as recruitment agent and may make such orders (including

orders permitting the holder of the certificate to continue to carry

on his business with respect to all or any of such emigrants and

other persons) as it may consider necessary in this behalf;




                               Chapter V

                    Accreditation of Employers




21. Save as otherwise provided, every employer who intends to

recruit, either directly or through a recruitment agency, an Accreditation of

emigrant, whether to any country as is specified by regulations Employers




                                                30
or otherwise, shall have an accreditation obtained under this

chapter.



Provided that an employer, who had been granted a valid permit

immediately before the commencement of the Act for recruiting

any citizen of India for employment, may continue to do so till

the date of its expiry, or for a period of six months, whichever is

earlier, from the date of commencement of this Act, and if he has

made an application to obtain accreditation.




22(1) An employer desiring to obtain accreditation may make an

application to the Central Government in such form, containing Procedure for

such particulars, accompanied by such fee and in such manner Accreditation

as may be specified by regulation.



(2) For the purposes of facilitating transparency and timely

disposal of applications, the competent authority may specify

minimum eligibility criteria for such accreditation of employers.



(3) Upon receipt of such an application, the competent authority

shall:

(i) after making such inquiry as may be required or as it may

deem necessary, and on being satisfied that applicant fulfills




                                               31
minimum eligibility criteria as is specified require him to furnish

the specified security;

(ii) on being satisfied that the applicant does not fulfill the

minimum eligibility criteria or on any other ground as is

mentioned by the regulations, or otherwise, reject such an

application and record a brief statement of his reasons for

making such rejection and furnish a copy thereof to the applicant

and also exhibit the same on the website unless it is detrimental

to the friendly relations with the foreign country or is within the

interest of the general public.



23. The accreditation granted under this chapter shall be valid Period of validity of

for such period, not exceeding five years, as may be specified accreditation

by order.



                                                                      Cancellation of
24. The provisions of Section 20 relating to cancellation and
                                                                      Accreditation
suspension of Certificate of registration of recruitment agencies

shall, subject to such modifications as may be necessary apply

for cancellation and suspension of grant of accreditation to

employers.




                            Chapter VI

        Registration of Enrollment Agencies for Students




                                             32
25. Save as otherwise provided in this Act, no enrolment agency

including foreign universities shall after the commencement of Registration of

this Act conduct or facilitate enrolment of a student for study Enrollment Agencies

from the territory of India at any educational institution in a

country or place outside India, except under and in accordance

with a certificate issued in that behalf by the competent authority.




                                                                       Procedure for
26. The provisions of Section 16, 17, 19 and 20 shall apply to
                                                                       registration/ cancellation
registration, duties and functions, cancellation/suspension of the
                                                                       of Certificate and Duties
certificate of enrolment agencies, with such modifications and
                                                                       and function of
adaptations, as may be specified by regulations.
                                                                       enrolment agencies


For the purposes of this chapter, enrolment agencies means a

person or a body of persons or an entity engaged in India in the

business of enrolment of Indian students for study in a foreign

educational institution or providing consultancy services for such

enrolment.




                            Chapter VII




                                              33
Appeals




27(1) Any person aggrieved by



(i) an order of the competent authority rejecting his application

for registration as a recruitment agency under section 17(1) or

requiring him to furnish security thereof or to comply with any

term and condition (not being a specified term and condition)

specified in the certificate issued to him under section 17(4) or

canceling/suspending the certificate of registration under section

20 thereof; or



(ii) an order of the competent authority rejecting his application

for accreditation as an employer under section 22(1) or to

comply with any term and condition (not being specified term and

condition) of accreditation granted to him thereof or refusing to

furnish copy of the order under section 22(3) thereof or canceling

or suspending grant of accreditation under section 24; or



(iii) An order of the competent authority refusing to register an

emigrant under the section 14 or a student under section 15;



may prefer an appeal against such order or non-assignment to




                                            34
the Central Government in such form and within such period as

may be prescribed:



(2) No such appeal shall be admitted after expiry of the period so

specified unless the appellant satisfies the Central Government

that he had sufficient cause for not preferring the appeal within

that period;



(3) The period prescribed for an appeal shall be computed in

accordance with the provisions of the Limitation Act 1963 with

respect to the computation of periods there under;



(4) Every appeal under this section shall be accompanied by a

copy of the order appealed against and such fee as may be

prescribed;



(5) The procedure for disposing of an appeal (including remand

of the matter for further consideration to the authority whose

order has been appealed against) shall be such as may be

prescribed:

Provided that before disposing of an appeal, the appellant shall

be given a reasonable opportunity of representing the case;



(6) Every order made on an appeal under this section




                                            35
confirming modifying or reversing the order appealed against

shall be final;



(7) Such appellate authority shall be an officer not below the

rank of an Additional Secretary or equivalent to the Government

of India.




                           Chapter VIII

                      Offences and Penalties




28 (1) Whoever :-,

(i) By intentionally furnishing false information or by suppressing

material facts, obtains a certificate of registration under section

16 or under section 25 or an accreditation under section 21 of

this Act or;

(ii) Without lawful competent authority, make or causes to make

any alteration in a certificate or document or endorsement

issued or made under this Act or;

(iii) Disobeys or fails to comply with an order issued by the

competent authority or;




                                               36
(iv) Collects from an emigrant, charges in excess of the limits

specified or fails to issue receipts for payments received by him

or;

(v) Cheats or intends to cheat emigrants or;

(vi) Indulges into Illegal recruitment or;

Explanation: “Illegal Recruitment” shall mean any act of

canvassing, enlisting, contracting, transporting, utilizing, hiring,

procuring individuals and includes referring, contact services,

promising or advertising for employment abroad, by all means of

communication, whether for profit or not, when undertaken by a

non-license or non-holder of competent authority contemplated

under the Act

(vii) Indulges into any act of human trafficking, or any other Act

,which may constitute an offence or;

(viii) Indulges into illicit trafficking of Drugs or harbour offenders



shall be punishable with imprisonment for a term which shall, in

the absence of any special and adequate reasons to be

recorded in the judgement by the Court, be not less than three

years but which may extend to seven years and/or with fine,

which shall not be less than one lakh rupees but which may

extend to five lakh rupees.




                                                37
(2) Whoever:-

(i) fails to register or intimate the Authority, in the manner as

may be prescribed under section 14 and section 15 or,

(ii) emigrates in violation of the Section 34 of the Act or,

(iii) in contravention of any provisions of this Act and the rules

and regulations made thereunder, emigrates

shall be punishable with a fine of no less than ten thousand

rupees.

Provided that the Central Government may revoke, suspend or

cancel the passport in such cases as it may deem fit for the

purposes of sub section (2).




(3) Provided that where the person exploited is a woman or a

child, such punishment of imprisonment shall not be less than

seven years and the fine shall not be less than five lakh rupees.



(4) Provided that where an offence has been committed under

sub-section (vii), provisions of the Indian Penal Code shall be

applicable.



(5) Provided that where an offence has been committed under

sub-section (viii), provisions of the Narcotics Drugs and




                                               38
Psychotropic Substances Act shall be applicable



(6) Whoever attempts to commit any of the offences specified

under sub section (1) shall be punishable in the like manner as

provided for such offence under that sub section.



(7) Whoever abets any of the offences specified under sub

section (1) shall, if the act so abetted is committed in

consequence thereof, shall be punishable in the like manner as

provided for such offence under that sub section.



(8) Whoever, having been convicted of any of the offences

specified under sub section (1), is again convicted of an offence

thereunder, shall be punishable for the second and each

subsequent offences, with double the penalty provided for such

offence under that sub section


                                                                    Offences by Companies


29 (1) Wherever, an offence under this Act has been committed

by a Company, every person who at the time the offence was

committed, was directly in charge of, and was responsible to, the

company for the conduct of the business of the company, as well

as the company, shall be deemed to be guilty of the offence and




                                            39
shall be liable to be proceeded against and punished

accordingly.

Provided that nothing contained in this sub section shall render

any such person liable to any punishment under this Act, if he

proves that the offence was committed without his knowledge or

that he exercised all due diligence to prevent the commission of

such offence.



(2) Notwithstanding anything contained in sub section (1), where

any offence under this Act has been committed by a company

and it is proved that the offence has been committed with the

consent or connivance of, or is attributable to any neglect on the

part of, any director, manager, secretary or other officer shall

also be deemed to be guilty of that offence and shall be liable to

be proceeded against and punished accordingly.



EXPLANATION:- For the purposes of this Section:-

(a) “company” means anybody, corporate and includes a firm or

other association of individuals:

(b) “director” in relation to a firm, means a partner in the firm.
                                                                     Offences to be

                                                                     Cognizable


Notwithstanding anything contained in the Code of Criminal




                                                40
Procedure, 1973, all offences under this Act shall be cognizable. Punishment to be

                                                                     without prejudice to any

The award of punishment for an offence under this Act shall be       other action

without prejudice to any other action which has been or which

may be taken under this Act with respect to such contravention.




                            Chapter IX

                          Miscellaneous




30(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973, an officer of the Central Government

or of a State Government authorised by the Central Government

in this behalf, may enter any public place and search, and arrest

without warrant, any person found therein who is reasonably

suspected to have committed or to be committing or about to

commit any offence under this Act.



Explanation:– For the purpose of this section, the expression

“public place” includes any public conveyance, hotel, shop or

any other place intended for use by, or accessible to, the public.



(2) Where any person is arrested under sub section (1) by an

officer other than a police officer, such officer shall, without




                                             41
unnecessary delay, take or arrange to send the person so

arrested before a magistrate having jurisdiction in the case or

before the officer in charge of a police station.




(3) The provisions of the Code of Criminal Procedure, 1973

shall, subject to the provisions of this section, apply, so far as

may be, in relation to any entry, search or arrest, made under

this section.



31. All the powers for the time being conferred by the Customs

Act, 1962 (52 of 1962), on officers of customs with regard to the

searching and detention of persons, vessels or aircraft or any
                                                                     Power to search, seize,
other conveyance, or seizure of any document or thing or arrest
                                                                     detain, arrest etc
of any person or otherwise for the purpose of prevention or
                                                                     persons under the
detection of any offence under that Act or for apprehending a
                                                                     provision of Customs
person suspected to have committed any offence under that Act
                                                                     Act 1962.
may be exercised, for the purpose of prevention or detection of

any offence under this Act or for apprehending a person

suspected to have committed any offence under this Act, by—

(a) any such officer of customs, or

(b) the competent authority or an officer authorised by it, or

(c) an officer in charge of an emigration check-post.




                                               42
32. Nothing contained in this Act shall apply, with regard to –     Exemption     of      certain

(i) Recruitment or emigration of a person who is not a citizen of emigrants                 from

India;                                                              application of Act.

(ii) Recruitment in India, for the services of foreign States to

which the Foreign Recruiting Act, 1874 applies.




33. Where any question arises, before the competent authority Determination                    of

as to whether a person intending to depart from India is or is not question     whether        a

an emigrant or a student, such question shall be decided by the person            is          an

competent authority after holding an inquiry in such manner, and emigrant/student.

upon considering such evidences, including any other evidence,

which, in the opinion of the competent authority, is relevant and

communicate the decision thereof to the person concerned in

such form and manner, as may be specified by regulations.




34(1) Where the Central Government has reason to believe, that Power to prohibit

sufficient grounds exist for prohibiting emigration to a country by emigration due to

reason of:                                                          epidemic, civil

                                                                    disturbances, general

(i) outbreak of any disease or grave pollution of environment in public, etc.




                                              43
such a country;

(ii) outbreak of hostilities or civil war or civil commotion or

political disturbances;

(iii) that by reason of India not being in diplomatic relations with

that country ;

(iv) having regard to the sovereignty and integrity of India, the

security of India, friendly relations of India with any foreign

country or the interests of the general public;

(v) any other sufficient ground;

it may, by notification, prohibit emigration to such country.



Provided that if the Central Government has reasons to believe

that any ground mentioned in sub section (1) continue to exist, it

may, from time to time, by notification prohibit emigration to that

country for such further period as may be specified in the

notification.



(2) The Central Government, may upon, any person who

emigrates against such restriction as mentioned in sub clause

(1) impose a penalty under such circumstances as may be

specified by rules and regulations.




35. Any security furnished under this Act shall, when no longer




                                              44
required for the purpose for which it was furnished, shall be Refund of Security

refunded or released to the person concerned in such manner as

may be specified by regulations.




36(1) The competent authority, as the case may be for the Authorities and officers

purposes of discharging functions under this Act, have the same to have certain powers

power as are vested in a civil court, under the Code of Civil of Civil Court

Procedure 1908 while trying a suit, in respect of the following

matters namely:-



(i) summoning and enforcing the attendance of witness;

(ii) requiring the discovery and production of any document;

(iii) requisitioning any public record or copy thereof from any

office;

(iv) issuing commissions for the examination of witnesses or

documents;



(2) Every proceeding before the competent authority under this

Act shall be a judicial proceeding within the meaning of sections

193 and 228 of the Indian Penal Code 1860 and shall be

deemed to be a civil court for the purposes of section 195 and

Chapter XXVI of the Code of Criminal Procedure 1973.




                                            45
37. The provisions of this Act shall have effect notwithstanding Overriding provision

anything inconsistent therewith contained in any other law.




38. The Central Government may, by general or special order, Delegation of Power

direct that any power or authority or function –

(i) which may be exercised or performed by it; or

(ii) which may be exercised or performed by the competent

authority,



under or in relation to any such provisions of this Act as may be

specified in that order may, subject to such conditions and

restrictions as may be specified therein, be exercised or

performed by-



(a) the competent authority; or

(b) any State Government or any officer or competent authority

subordinate to such State Government; or

(c) in any foreign country in which there is no diplomatic mission

of India, by a foreign consular office.




39. The Central Government may, for the purposes of, and in

exercise of its powers and performance of its functions under this Power to give directions.

Act, give such directions, as it may think necessary, to the




                                              46
competent authority or any person or officer and the competent

authority, person or officer shall be bound to comply with such

directions.




40. No suit, prosecution or other legal proceedings shall be

against the Central Government or the competent authority or Protection           of   Action

any officer of Central Government or any member, officer or taken in good faith.

other employees of the competent authority for anything which is

done in good faith or intended to be done under this Act or the

rules or regulations made there under.




41(1) The Central Government may, by notification, make rules Power to make Rules

to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the

forgoing power, such rules may provide for all or any of the

matters, as mentioned in the Act.




42. The competent authority may, by notification, make

regulations consistent with this Act and the rules made there Power              to    make

under to carry out the purposes of this Act.                       regulations




                                               47
43. Every notification, every rule and every regulation made

under this Act shall be laid, as soon as may be after it is issued

or made, before the each House of Parliament, while it is in Rules and regulations to

session, for a total period of 30 days which may be comprised in be         laid       before

one session or in two or more successive sessions, and if before Parliament.

the expiry of the session immediately following the session or the

successive sessions aforesaid, both houses agree in making any

modification in the notification or the rules or regulation should

not be issued or made, the notification or rule or regulation shall

thereafter have effect only in such modified form or be of no

effect, as the case may be so, however, that any such

modification or annulment shall be without prejudice to the

validity of anything previously done under that notification or rule

or regulation.




44(1) If any difficulty arises in giving effect to the provisions of Power to remove

this Act, the Central Government may, by order, published in the difficulties.

official gazette, make such provisions not inconsistent with the

provisions of this Act as may appear to be necessary for

removing difficulty:

Provided that no order shall be made under this section, after the

expiry period of two years from the date of commencement of

this Act.




                                              48
(2) Every order made under this section shall be laid, as soon as

may be after it made, before each House of Parliament.




45(1) The Emigration Act 1983 (hereinafter referred to as the

repealed Act) is hereby repealed.                                        Repeal and Saving



Provided that such repeal shall not affect.



(i) the previous operation of the law so repealed, or anything duly

done or suffered there-under; or



(ii) anything done or any action taken or purported to have been

done or taken including any rule, notification, inspection order or

notice made or issued or any appointment or confirmation made

or   any    certificate   of   registration   granted,   permission,

authorization or exemption granted or any document or

instrument executed or any direction given under the repealed

Act shall, in so far as it is not inconsistent with the provisions of

this Act, be deemed to have been done or taken under the

corresponding provision of this Act; or



(iii) any right privilege obligation or liability acquired occurred or

incurred under the law so repealed; or




                                               49
(iv) any right, privileged, obligation or liability acquired, accrued

or incurred under the Law so repealed; or,



(v) any penalty, forfeiture or punishment incurred in respect of

any offense committed against the Act so repealed; or,



(vi) any investigation, proceeding, legal proceeding or remedy in

respect of any such right, privilege, obligation. liability, penalty.

Forfeiture   or   punishment    as   aforesaid;    and   any   such

investigation, proceedings, legal proceedings or remedy may be

instituted, continued or enforced; any such penalty forfeiture or

punishment may be imposed as if this Act had not been passed.



(2) Save as otherwise provided in sub section (i), the mention of

particular matters therein shall not be held to prejudice or affect

the general application of section 6 of the General Clauses Act,

1897 with regard to the effect of repeal.




                                              50
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